127 F.

3d 966
97 CJ C.A.R. 2432

UNITED STATES of America, Plaintiff-Appellant,

v.
Raphael RODRIGUEZ-VELARDE, Defendant-Appellee.
No. 96-2292.

United States Court of Appeals,

Tenth Circuit.
Oct. 17, 1997.

John J. Kelly, United States Attorney, James T. Martin, Assistant United

States Attorney, Albuquerque, NM, for Plaintiff-Appellant.
Timothy M. Padilla, Albuquerque, New Mexico, Vernon E. Peltz, Tucson,
AZ, for Defendant-Appellee.
Before BRORBY, BARRETT, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.

The only issue on appeal is whether the district court abused its discretion in
granting a downward departure from the sentencing range prescribed by the
United States Sentencing Guidelines (U.S.S.G.) based on defendant's family
responsibilities. We conclude that the circumstances presented here do not
support the departure and, therefore, we reverse.1

On August 8, 1996, defendant pleaded guilty to Count I of a four-count

indictment, which charged him with conspiracy to possess, with intent to
distribute, more than 100 kilograms of marijuana, in violation of 21 U.S.C.
846, and with aiding and abetting, in violation of 18 U.S.C. 2. The
presentence report (PSR) calculated an offense level of 28 and a criminal
history category of III which, when combined, yielded a sentencing range of 97
to 121 months.

At the sentencing hearing in October 1996, defendant made an oral motion for

a downward departure based on extraordinary family circumstances, namely

the death of his wife. Defendant's wife was killed in an automobile accident in
June 1996, subsequent to defendant's arrest, leaving behind three children, aged
six, eight, and eleven. The district court granted the departure, over the
government's objection, concluding that the death of defendant's wife during
the course of the criminal proceedings was an unusual situation and one that the
Sentencing Commission had not considered in promulgating the Guidelines.
The court, therefore, imposed a sentence of sixty months, which was the
statutory minimum sentence for defendant's offense. The government now
appeals, arguing that defendant's family responsibilities are no different than
those of other single parents who are sent to jail and, therefore, do not justify a
departure.
4

A district court must impose a sentence within the Guideline range unless it
determines "that there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a sentence
different from that described." 18 U.S.C. 3553(b). In making this
determination, the court should consider only the Guidelines, the policy
statements, and the commentary of the Sentencing Commission. Id.

In Koon v. United States, 518 U.S. 81, ---- - ----, 116 S.Ct. 2035, 2046-48, 135
L.Ed.2d 392 (1996), the Supreme Court held that appellate courts should
review a district court's decision to depart from the Guidelines under a unitary
abuse of discretion standard. We recently held, in light of Koon, that appellate
courts reviewing departure decisions should evaluate the following:

6 whether the factual circumstances supporting a departure are permissible

(1)
departure factors; (2) whether the departure factors relied upon by the district court
remove the defendant from the applicable Guideline heartland thus warranting a
departure, (3) whether the record sufficiently supports the factual basis underlying
the departure, and (4) whether the degree of departure is reasonable.
7

United States v. Collins, 122 F.3d 1297, 1302 (10th Cir.1997). The first
inquiry, whether the factors are permissible for departure, is "essentially legal,"
and our review "should be plenary." Id. Impermissible departure factors include
"forbidden factors, discouraged factors that are not present to some exceptional
degree, and encouraged factors already taken into account by the applicable
guideline that are not present to some exceptional degree." Id. The second
inquiry, whether the factual circumstances of the case make it atypical, is
largely factual, and our review is "at its most deferential." Id. "We emphasize,
however, that all four steps of the departure review are subject to a unitary

abuse of discretion standard." Id.

8

The Sentencing Guidelines provide that "[f]amily ties and responsibilities and
community ties are not ordinarily relevant in determining whether a sentence
should be outside the applicable guideline range." U.S.S.G. 5H1.6. Because
family ties and responsibilities are a discouraged factor under the Guidelines, a
district court may depart based on this factor "only if the factor is present to an
exceptional degree or in some other way makes the case different from the
ordinary case where the factor is present," Koon, 518 U.S. at ----, 116 S.Ct. at
2045.

"[O]rdinary family responsibilities can be very great." United States v. Dyce,

91 F.3d 1462, 1466 (D.C.Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 533, 136
L.Ed.2d 418 (1996). In addition, "the disintegration of existing family life or
relationships ... is to be expected when a family member engages in criminal
activity that results in a period of incarceration." United States v. Canoy, 38
F.3d 893, 907 (7th Cir.1994). Thus, the circuit courts have uniformly held that
family circumstances cannot form the basis for a departure unless they are
extraordinary. See, e.g., United States v. Webb, 49 F.3d 636, 638 (10th Cir.),
cert. denied, --- U.S. ----, 116 S.Ct. 121, 133 L.Ed.2d 71 (1995); Canoy, 38 F.3d
at 906 (collecting cases). To justify a departure, a defendant must demonstrate
that "the period of incarceration set by the Guidelines would have an effect on
the family or family members beyond the disruption to family and parental
relationships that would be present in the usual case." Canoy, 38 F.3d at 907.

10

Here, defendant made no showing about his family circumstances beyond the
argument of counsel that the death of defendant's wife had effectively orphaned
defendant's three children and that her death had created turmoil in the family
about where the children should stay and who should be their guardian. The
PSR reflected that, since the death of their mother, the children had been living
with their maternal grandmother in Tucson, Arizona, and had not had any
contact with defendant.

11

While we are not unsympathetic to the circumstances facing defendant's

children, defendant has not shown that these circumstances are substantially
different than those facing the minor children of any single parent who is about
to be incarcerated. "A sole, custodial parent is not a rarity in today's society,
and imprisoning such a parent will by definition separate the parent from the
children. It is apparent that in many cases the other parent may be unable or
unwilling to care for the children, and that the children will have to live with
relatives, friends, or even in foster homes." United States v. Brand, 907 F.2d 31,
33 (4th Cir.1990).

12

In Webb, 49 F.3d at 638-39, we rejected a defendant's contention that his role

as the sole caretaker of his minor son, who began experiencing difficulties in
school after the defendant's incarceration, created an unusual family situation
that justified a departure. Other circuits have also held that a defendant's status
as a single parent does not constitute an extraordinary family circumstance
warranting departure. See, e.g., United States v. Chestna, 962 F.2d 103, 107
(1st Cir.1992) (single mother of four young children, including infant born after
sentencing); United States v. Headley, 923 F.2d 1079, 1083 (3d Cir.1991)
(single mother of five children, ranging in age from eleven months to eleven
years); United States v. Goff, 907 F.2d 1441, 1446 (4th Cir.1990) (single
mother of three children, aged seven, six, and two, who would have to live with
ill grandmother in another state during mother's incarceration); Brand, 907 F.2d
at 32-33 (sole custodial parent of two children, aged seven and eighteen
months, younger of which would live with grandmother and older of which
would live with foster parents in another state); United States v. Harrison, 970
F.2d 444, 447-48 (8th Cir.1992) (widow with adopted granddaughter, aged
nine, who would have to live with mother whom defendant alleged was not
competent to care for child because of " 'her drinking and carousing around and
dope' "); Dyce, 91 F.3d at 1467 (single mother of three young children,
including infant who was being breast-fed). But see United States v. Johnson,
964 F.2d 124, 129 (2d Cir.1992) (concluding that defendant, who "was solely
responsible for the upbringing of her three young children, including an infant,
and of the young child of her institutionalized [adult] daughter, ... faced
extraordinary parental responsibilities").

13

Nor is it "atypical for husbands and wives to commit crimes together." United
States v. Pozzy, 902 F.2d 133, 139 (1st Cir.1990). That this may result in a
minor child's loss of both parents through incarceration has not justified a
departure from the Guidelines. See United States v. Carr, 932 F.2d 67, 72 (1st
Cir.1991) (child four years old at time parents sentenced); Pozzy, 902 F.2d 133,
138-39 (1st Cir.1990) (child due to be born four months after parents
sentenced).

14

Because defendant failed to demonstrate that his family ties and responsibilities
are extraordinary, the district court abused its discretion in relying on this factor
to grant a downward departure from the applicable Guideline range. Therefore,
we VACATE the sentence imposed by the district court, and REMAND for
resentencing within the Guideline range of 97 to 121 months.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument